Narayanaswamy Iyer Vs. Doraisawmy Pathar and ors. - Court Judgment

LegalCrystal Citation

legalcrystal.com/799423

Court

Chennai

Decided On

Aug-23-1921

Judge

Krishnan, J.

Reported in

AIR1921Mad451; 65Ind.Cas.343

Appellant

Narayanaswamy Iyer

Respondent

Doraisawmy Pathar and ors.

Excerpt:ex parte decree - defendants, several--decree not joint or indivisible--decree, whether can be set aside against all defendants on application by some--civil procedure code (act v of 1908), order ix, rule 13, proviso, applicability of. - krishnan, j.1. the point taken in this revision petition is that the ex parte decree should not have been set aside against those defendants who did not engage mr. sitarama sastrigal as their vakil, as the reason for setting aside the ex parte decree against his clients, vis, his illness, will not apply in their case. the point is obviously correct, but the lower court has apparently acted under the proviso to order ix, rule 13, civil procedure code, in setting aside the whole decree against all the defendants. it seems to me this is not a case that falls within the proviso. the suit was one to obtain possession of separate items of properties from separate sets of defendants and the ex parte decree was not a joint and indivisible decree. the fact that one or more common issues arose in.....

Judgment:

Krishnan, J.

1. The point taken in this revision petition is that the ex parte decree should not have been set aside against those defendants who did not engage Mr. Sitarama Sastrigal as their Vakil, as the reason for setting aside the ex parte decree against his clients, vis, his illness, will not apply in their case. The point is obviously correct, but the lower Court has apparently acted under the proviso to Order IX, Rule 13, Civil Procedure Code, in setting aside the whole decree against all the defendants. It seems to me this is not a case that falls within the proviso. The suit was one to obtain possession of separate items of properties from separate sets of defendants and the ex parte decree was not a joint and indivisible decree. The fact that one or more common issues arose in the case in which all the defendants were interested is not the guiding factor for the applicability of the proviso, but the nature of the decree itself that is passed.

2. The decree should not, therefore, have been set aside against defendants Nos. 14, 16, 17, 41, 47, 52, 60 and 61. It is possible those defendants may apply hereafter and show cause themselves why the ex parte decree should be set aside in their favour but, till they do so, the decree must be maintained against them.

3. The civil revision petition is allowed and the order of the lower Court varied as stated above; petitioner Will have his costs of this Civil revision petition from the respondents.